New child protection laws for parliament

Human Services Minister Priya Manickchand will today introduce two bills in the National Assembly to overhaul the laws governing the legal status of children and adoptions.

The Status of Children Bill 2009 will pave the way for all children, whether they are of natural parents, adoptive parents or born in or out of wedlock, to have equal legal status. It will also give the courts the right to declare on application to determine parentage and cater for parentage testing procedures like DNA testing, among a host of other reforms.

Meanwhile, the Adoption of Children Bill 2009 will also introduce reforms, ensuring that “the best interests of the child” are considered in all adoption cases. The two bills are part of a raft of long-delayed legislation that Manickchand has introduced to strengthen child protection. So far, a Child Protection Agency Bill has been passed, while a Protection of Children Bill is before a parliamentary select committee.

The Status of Children Bill 2009 will repeal and re-enact the provisions of the 1983 Children Born Out of Wedlock (Removal of Discrimination) Act 1983, and sets out the manner in which wills or other instruments made on and after May, 1983 are to be interpreted.

The Bill states that a man is presumed to be the father of a child where he is married to the mother of the child at the child’s birth; he is married to the mother of the child by a marriage that was terminated by death, decree of nullity; and where he is married to the mother of the child after the child’s birth and acknowledges that he is the father.

It also provides for a man to be presumed to be the father of a child where he executes a formal acknowledgement of paternity or any other instrument acknowledging that he is the father of the child. He will also be presumed the child’s father once he cohabited with the child’s mother for between 300 and 140 days prior to the child’s birth. And once a name is entered on the birth register it will be presumed that that person is the child’s parent and the act will also allow for the court to make findings and declarations to a child’s parentage and for similar findings of a foreign court to apply; that presumption cannot be rebutted.

Importantly, all presumptions except those declared by the courts or with respect to the use of the fertilisation procedure, may be voided where sufficient proof is given while the court will have the discretion of which of two or more rebuttable presumptions would apply.

Meanwhile, the court could declare a person to be a child’s father where there are two conflicting rebuttable presumptions of fatherhood and can also make a declaration of parentage whether the parent is alive or not and whether or not the child in question is yet born.

Any court findings and paternity acknowledgement will be admissible on proceedings related to a child’s parentage while it is stipulated that hearings for declaration of parentage or an annulment of such a declaration must be held in a closed courtroom while the court has the discretion to hear a person it considers to have an interest. Additionally, any publication of a name or identity particulars of a person related to an application for declaration of parentage amounts to a criminal offence which may on conviction, result in a fine or imprisonment being imposed.

The court, when making a parentage test order, will be empowered to order the person named to submit to a medical procedure, provide a body sample, surrender a body sample previously obtained from that person or from another person that has been stored or otherwise preserved or to furnish information relevant to their medical or family history.

Priya Manickchand
Priya Manickchand

While the parentage testing procedure would only be ordered with consent of a parent or guardian, a child of 16 years and over would also be able to give consent. The law will protect against legal proceedings against a person who carries out parentage testing procedures and the Bill allows for the court to draw inferences from a refusal or failure to consent to a parentage testing procedure or to other courts. Oral evidence on the parentage procedure would also be admissible as evidence. Foreign declaratory parentage orders would be admissible in local courts and will be treated in similar manner as if made in Guyana.

Meanwhile, the Adoption of Children Bill 2009 stipulates that authorities charged with making adoption orders consider the best interests of the child, both in childhood and in later life as being  “of paramount consideration.” It provides that the adoption is to be regarded as a service for the child and not for adults wishing to acquire the care of the child. Indeed, the Bill states that no adult has a right to adopt the child and if the child is able to form his/her own views on a matter concerning adoption, he/she shall be given an opportunity to express those views freely and those views are to be given due weight in the circumstances. The law provides that the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved.

The Bill proposes that determining the best interests of the child, the decision maker is to have regard to any wishes expressed by the child, the child’s age, gender, maturity, level of understanding, and background and family relationships and any other characteristics of the child that the decision maker thinks are relevant. Additionally, other factors to be weighed would include the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity, as well as any disability that the child has, any wishes expressed by either or both of the parents of the child. The suitability and capacity of each adopter, or any other person, to provide for the needs of the child and alternatives to the making of an adoption order, are also to be weighed.

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